Delhi High Court

Cpl. Md. Sa Ansari vs Union Of India & Ors. on 9 October, 2014

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Date of hearing and order: 9th October 2014

+     W.P.(C) 5073/2013

      CPL. MD. SA ANSARI                           ..... Petitioner
                     Through:           Mr. Ganesh Kumar, Advocate

                                   versus

      UNION OF INDIA & ORS.                        ..... Respondents
                    Through:            Mr. Ankur Chhibber, Advocate

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE NAJMI WAZIRI
                       ORDER

% KAILASH GAMBHIR, J. (Oral)

1. In the present writ petition, the petitioner has assailed the refusal of

the respondents to grant him the requisite "No Objection Certificate" and

discharge from service, to enable him to accept and comply with the

formalities towards his appointment to the post of Assistant Manager with

the IDBI Bank, respondent No.5 before us.

2. The petitioner joined the Indian Air Force under the joining

instructions of the respondent No. 2 on 29th March, 2005 as an Airman

and since then he is working with the respondent. The petitioner asserted

that as per the joining instructions as stipulated in para 8, the petitioner

could apply for the Class I Government job on acquiring the requisite

qualifications. Para 8 of the said instructions read as follows:-

"8. During your training, stress will be given to English language and by the time you pass out you will be well versed with written and spoken English. If you have the requisite qualification, you can apply for the class-I Government Job."

3. His educational qualification was 10+2 at the time of joining the

Indian Air Force. In 2010, the applicant completed his graduation from

Indira Gandhi National Open University after taking necessary

permission from the Indian Air Force.

4. The submission of the petitioner is that, the respondents keeping in

view the normal aspiration of any person for career progression and

progress, issued an Air Force Order being AFO 05/2003, captioned as

"Permission to Airmen/NCs(E) to Apply for Civil post/services under

Central/State Governments/public sector undertakings" on 9th May,

2003, wherein it was stated that Airmen/NCs(E) who have completed

seven years of their engagement including the training period would be

permitted to apply for civil posts under Central/State Governments and

Public Sector Undertakings.

5. This AFO was followed by another order being AFO 14/2008

issued on 19th September, 2008. This also enabled such personnel who

had completed seven years of service from the date of enrollment to apply

for a civil post under the Central/State Governments and Public Sector

Undertakings.

6. We may also refer to the amended Air Force Order being AFO

16/08 dated 19.09.2008, providing a list of compassionate and other

grounds for discharge from service of Airmen before the expiry of their

regular engagement.

7. The petitioner being a sincere and diligent person, not only

completed his graduation, while in service, but also prepared for the

competitive examinations with utmost dedication.

8. The petitioner submits that on 31.05.12, the respondent No.2

passed an Air Force Order being AFO 04/12 stating that Airmen/ NCs (E)

who have completed 07 years of their engagement will be permitted to

apply for civil posts under Central/State Governments and Public Sector

Undertakings. It is the case of the Petitioner that he had completed the

requisite 07 years of service on 29.03.12.

9. Pursuant to the advertisement published in the month of Feb/

March 2012 for the selection of the personnel for Probationary Officer/

Management Trainee posts by the IBPS, the petitioner applied for the said

post and undertook the common written exam which he qualified. The

petitioner sought a NOC vide application dated 16.04.2013, which was

not approved by the respondent no. 4.

10. The petitioner received a provisional letter of offer dated

10.07.2013 from the respondent No. 5 requiring him to report for duty on

21-07-2013 and on receipt of the appointment letter, he submitted an

application to the respondent no. 4 seeking permission for discharge from

service vide application dated 15-07-2013.The petitioner also contends

that no decision thereon is alleged to have taken by the authorities since

nothing has been conveyed to him in writing till date.

11. The respondents have contested this petition and the contention

raised by them in the counter affidavit is that, in terms of the AFO

04/2012, an individual is eligible to apply for a civil post only on the

completion of seven years service. Furthermore, the application of the

individual seeking permission to apply for civil employment is to be

routed through proper channel i.e. from the Unit of an individual and

prior to appearing for the interview, the individual is required to apply for

the grant of 'No Objection Certificate' (NOC) which is to be issued by

the Air Head Quarter. It is also the stand of the respondent that discharge

from the service cannot be claimed as a matter of right and nothing shall

interfere with the power of Air Headquarter to suspend, withhold or

discharge temporarily or otherwise on compassionate ground or review

the same in a particular case. It is also the stand of the respondents that

under para 6 of AFO 4/2012, no Airmen/NCs(E) of the Indian Air Force

is eligible to apply for civil posts/services under the Central/State

Government including PSUs and jobs in private sector without prior

permission from the competent Air Force Authority. Applications seeking

permission to apply for civil employment are scrutinised by their parent

Unit and cases of Airmen/NCs (E) falling in the eligible category as

provided in AFO 04/2012 are forwarded to the prospective employer.

12. We have heard the submissions and the counter submissions made

by the learned counsel appearing for both the sides and given our

thoughtful consideration to the same.

13. The main contentions raised by the respondents herein were the

subject matter of discussion in some of the cases decided by this Court.

In Cpl. Sandeep Kumar v. Union of India & Ors, decided by this Court

in W.P. (C) No. 4864/2012 vide order dated 21 st August 2012, the

petitioner therein was not discharged from service as he did not inform

the Department before he submitted his application to the UPSC; and

secondly, as on that date, he had not served the Armed Forces for a period

of seven years. In this context, while placing reliance on an earlier

judgment of the Division Bench of this Court in W.P. (C) No. 8760/2008

titled Pradeep Kumar vs. Union of India & Anr., decided on 16th

December 2008, the Court held as under:-

"13. In an unreported decision dated December 16, 2008 in WP(C) No.8760/2008 Pradeep Kumar v. UOI & Anr., considering a pari-materia policy framed by the Air Force, where the petitioner therein had similarly applied to take the examination for the post of Assistant Commandant in a Para Military Force but had not completed 7 years service but by the time the result was declared and when he sought a discharge, had completed 7 years service, the Division Bench held that the ethos of the policy was that a person should have served Air Force for 7 years before he could seek discharge and thus it hardly mattered whether on the date when he had applied for the job the person had not completed 7 years service; if when the person sought discharge he had served for 7 years, the right to be discharged, for Group "A" posts, would automatically flow.

14. The said view has been reiterated by various Division Benches in the decisions dated October 21, 2009: WP(C) No.9088/2008 Cpl. N.K.Jhakhar v. UOI & Ors., dated November 30, 2009: WP(C) No.13420/2009 Cpl. Praveen Kumar v. UOI & Ors., and dated July 28, 2010: WP(C) No.3257/2010 Cpl. Charan Singh v. UOI & Ors.

15. It may be true that if the petitioner is directed to be discharged by the Air Force Authorities we may be encouraging a breach of discipline and would be condoning wrong information furnished by prospective candidates while filling up the application forms. On facts we have noted that the petitioner furnished a wrong declaration when he submitted the application form that he had informed his department of so doing: a declaration which is admittedly wrong.

16. But, declarations which relate to a vital information which would have a bearing on public employment i.e. eligibility, declarations pertaining to character etc. would stand on a footing different than declarations which relate to procedures.

17. Courts often face a dilemma where competing interests clash, but then it is the duty of the Court to solve the same. The dilemma which we face in the instant case is of a young man who stands before us and beseeches us that coming from a humble socio- economic background, standing by his family by taking up a job at a young age of 18 and having served the nation for 7 years, first as an Airman and then as a Corporal with the Air Force, he should be pardoned for a technical wrong information supplied by him and the consequences of he being accountable for an action be factored i.e. he would continue to languish and would retire as a JCO whereas joining CISF as an Assistant Commandant at the age of 26 years (this is the petitioner's current age) his career prospects may take him to the top most post.

18. Aspirations of the youth of this country, and especially of those who come from humble origins need to be nurtured and protected, and in our opinion not sacrificed on the altar of punishments. That apart, what purpose would it serve if we hold it against the petitioner: he would always have a brooding ill will

against the system and would always feel cheated in life of not being permitted to achieve what he could by dint of hard-work. He would be a disgruntled Airman and suffice would it be to state that it is better not to have any employee rather than to have a disgruntled employee in the organization.

19. The aspirations of the petitioner, his hard work and his achievements when weighed in the scale with the interest of the organization in the other side, compels us to hold the scale in favour of the petitioner, and we feel that the petitioner deserves a pardon for the wrong committed by him, and thus we dispose of the writ petition issuing a mandamus to the respondents to issue a No Objection Certificate as also a Discharge Certificate and relieve the petitioner from service within a period of one week from today so that the petitioner is able to report for duties to Central Industrial Security Force."

14. This Bench also had an occasion to come across a similar case

being W.P. (C) No. 554/2004, titled as Cpl B S Siddha v. Union of India

and Ors. decided on 18.09.2014 and concurring with the view earlier

taken by the Division Benches of this Court in the cases referred above,

the petitioner therein was held entitled to the same reliefs. Although, at

the time of hearing of the said writ petition of Cpl. B.S. Siddha, the Court

was not apprised about the filing of any SLP by the Union of India yet we

cannot lose sight of the fact that the respondents, before filing the Special

Leave Petition in the case of Sandeep Kumar, had issued a conditional

discharge letter to enable the said Sandeep Kumar to join the Central

Industrial Security Forces.

15. In the light of the above discussion and concurring with the view